JUSTICE DR. SYED MUHAMMAD ANWER, J.---By this consolidated judgment, we propose to decide Jail Criminal Appeal No.05-I of 2020 filed by appellant Ali Asghar against his conviction and Criminal Acquittal Appeal No.06-K of 2020 filed by appellant Muhammad Umar against acquittal of respondents Saeed and Ahsan Ali.
After conclusion of trial in case FIR No.07 of 2013 registered under Sections 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the learned Additional Sessions Judge, Moro, through judgment dated 02.05.2020 recorded conviction against the present appellant under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and awarded the Appellant sentence of 25 years along with compensation to the tune of Rs.50,000/- under Section 544, Cr.P.C. to be paid by the appellant to the legal heirs of the deceased Mahiwal or in default to further undergo rigorous imprisonment for six months. Benefit of Section 382-B of the Code of Criminal Procedure, 1898 was also extended in favour of the appellant. However, acquittal was recorded in favour of accused Saeed Bughio and Ashan Mughal from the charge levelled against them.
2. By way of Jail Criminal Appeal No.05-I of 2020, the appellant Ali Asghar has called in question vires of said judgment, seeking acquittal while setting aside the judgment.
3. Accusation contained in the Crime-Report (Ex.12-A), got recorded by Muhammad Umar (P.W.1) on 25.03.2013 at 21:15 hours, is that on the said date, he, his brother Mahiwal, his son Ali Murad and his maternal uncle Mithal together proceeded to Shahpur Jehania for purchasing articles. While returning back on foot to their village at around 9:00 p.m., when they reached village Haro Bhatti, three persons riding on black colour motorcycle intercepted them. The complainant party on the light of torch identified the culprits to be Saeed son of Liaque Bughio, Ahsan son of Abdul Sattar Mughal (the acquitted accused persons) and Ali Asghar son of Ghulam Sajjad Leghari (the present appellant). The accused persons tried to rob the complainant party to which Mehwal, brother of the complainant offered resistance in a scuffle. In response, accused Ali Asghar opened fire, which hit below the left breast in the chest of complainant's brother Mehwal, who fell down and died at the spot. Upon hue and cry raised by the complainant party, accused persons fled from the scene.
The complainant leaving the witnesses with the dead-body of his brother reached police station for reporting the occurrence."
4. Investigation of this case was entrusted to Ghulam Abbas, A.S.I. (P.W.4). He recorded the FIR (Ex.12-A) and visited the place of incident from where he secured blood stained raw and one empty of .30 bore pistol, which were sealed separately. He also inspected the dead body of deceased Mehwal (Ex.15-B) prepared Danistnama (Ex.15-C) and lash Chakkas Form (Ex.16-A). After completing legal formalities, he dispatched the dead body through HC Haji Khan for postmortem.
On 28.03.2013, he sent the case property to the expert for opinion. On 27.03.2013, he arrested accused persons, namely, Ali Asghar, Saeed and Ahsan and upon search of accused Ali Asghar, .30 bore pistol, three live rounds and 100 currency notes were recovered from him. While one T.T. pistol and two live rounds were recovered from the possession of accused Saeed. Similarly, one T.T. pistol and three live bullets were recovered from the possession of accused Ahsan. He recorded the statement of witnesses under Section 161, Cr.P.C. and sent the weapons to the ballistic expert for examination and report.
5. Earlier, this case was tried by the learned Additional Sessions Judge, Moro and vide judgment dated 07.10.2019, the convict-appellant Ali Asghar and co-convicts Saeed and Ahsan were convicted under Section 396 of Pakistan Penal Code, 1860 and sentenced each of them 25 years imprisonment and to pay compensation of Rs.100,000/- under Section 544, Cr.P.C. payable by the accused Ali Asghar to the legal heirs of deceased or in default to further undergo six months rigorous imprisonment. While accused Saeed and Ahsan were ordered to pay compensation of Rs.50,000/- each to the legal heirs of the deceased or in default to further undergo rigorous imprisonment for six months. Benefit of Section 382-B, Cr.P.C. was also extended to them.
6. Being aggrieved with the judgment dated 07.10.2019, the convict-appellant Ali Asghar and co- convicts Saeed and Ahsan Ali jointly filed Jail Crl. Appeal No.17-I of 2019 before this Court and after hearing, the said appeal was accepted vide judgment dated 07.11.2019 passed by this Court, the judgment of learned Trial Court dated 07.10.2019 was set aside and the case was remanded back to the learned Trial Court for de novo proceedings after framing of fresh charge with direction to expedite and conclude the trial, preferably within a period of three months under intimation to this Court through Registrar.
7. The appellant along with co-accused Saeed and Ahsan, who were charged under Section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, pleaded not guilty and claimed to be tried.
8. The prosecution in order to prove its case, produced as many as seven witnesses including complainant Muhammad Umar (P.W.1), Muhammad Mithal (P.W.2), Ali Murad (P.W.3) (eye-witnesses) and Dr. Bashir Ahmad (P.W.5), who conducted autopsy on the dead body of deceased Mahiwal.
9. The appellant, co-accused Saeed and Ahsan in their respective statements recorded under Section 342 of the Code of Criminal Procedure, 1898, denied the whole incriminating evidence with which they were confronted and pleaded innocence. They neither opted to be examined on oath under Section 340(2), Cr.P.C. nor produced any evidence in their defence.
10. The learned Trial Court after hearing the adversaries recorded conviction against the present appellant awarding him sentence, the detail of which has been given in para-1 of the judgment.
11. The Learned Counsel for the appellant while making reference to the evidence adduced by prosecution contended that torch in the light of which accused persons were identified and the motorcycle on which accused person were riding were not produced during the trial.
Dealing with the aspect of purchasing articles by the complainant party, it was submitted that no household articles were produced before the learned trial Court and while drawing our attention to the contents of FIR, it was submitted that the manner in which the FIR was lodged was unbelievable and the present appellant has falsely been nominated in the FIR.
Submitting arguments on the factum of recovery of pistols and bullets, no witness regarding sending those pistols and bullets to the Forensic Science Laboratory was produced at the trial.
Further submitted that no entry of the register was produced by the Investigating Officer during the trial.
Continuing the arguments, learned counsel submitted that three .30 bore pistols and live bullets recovered from the possession of present appellant and two co-accused persons on 27.03.2013 were received by the Forensic Science Laboratory on 03.04.2013 with delay of 06 days in the absence of plausible explanation.
While questioning the conclusion drawn, maintained that the co-accused Saeed and Ahsan have been acquitted on the same set of evidence while the present appellant has been convicted and awarded sentence.
12. Controverting the arguments, defending the impugned judgment, learned Additional Prosecutor-General appearing on behalf of the State argued that the FIR was lodged with promptness leaving no room of deliberation and consultation, falsely implicating the appellant with specific allegation of making fire upon the deceased in the presence of complainant Muhammad Umar (P.W.1), who is brother of the deceased.
Referring to the statement of appellant under section 342, Cr.P.C., it was submitted that no previous enmity has been claimed by the appellant.
Submitting arguments on the quantum of sentence, it was contended that a lenient view has already been taken by the learned trial Court.
13. Heard adversaries and evaluated the evidence keeping in view the contentions advanced.
14. On our evaluation of the evidence and material brought on the record, we find that there are material and glaring contradictions; admissions adverse to the prosecution; and dishonest and deliberate improvements to strengthen the prosecution case during the trial in the statements by the PWs such as complainant Muhammad Umar has stated that he had mobile phone at the time of incident, while per alleged eye-witness PW Ali Murad, who happened to be his son, on the day of incident his father had no mobile phone and whereas according to alleged eye-witness PW Muhammad Mithal he had no mobile phone at the time of incident and he does not know whether the complainant had mobile phone or not at the time of incident; but he went on to state that they informed their relatives on phone about the incident, therefore. Qaim and Ghulam Mustafa (mashirs) reached at the scene of offence, while complainant has stated that they (Ghulam Mustafa and Qaim) came at the place of vardhat on their hue and cries; the complainant and PW mashir Ghulam Mustafa have claimed that the place of incident would be at the distance of two kilometers from their village; but per PW Muhammad Mithal their village is on walking distance from the place of incident; the complainant has stated that the place of incident is situated adjacent to village Harro Bhatti and village Bungal Burdi is at the distance of about 4 acres from Haro Bhatti village while PW Ali Murad has stated that village Haro Bhatti is situated at the distance of about 5/6 acres of land; according to PW Muhammad Mithal village Bungal Burdi is at the distance of 8 acres from the place of incident and whereas per PW Ali Murad village Bungal Burdi is at the distance of 15/20 acres of the land from the place of incident; the complainant has stated that they were going from southern side towards northern side from Shahpur Jahania to their village Piaro Bhatti; while PW Muhammad Mithal has stated that they were going towards eastern side; and whereas PW Ali Murad has stated that they were coming from Shahpur Jahania towards the alleged place of incident i.e. from eastern side to western side; as per complainant and PW Ali Murad, the accused were standing on eastern side at the time of incident and whereas according to PW Muhammad Mithal the accused were standing on western side at the time of incident; per complainant and PW Muhammad Mithal, the accused persons had not robbed anything from them and whereas PW Ali Murad has stated that accused had robbed household things from Mahiwal and Mithal; the complainant has stated that accused Saeed resisted by giving push to Mahiwal when accused Asghar Laghari made fire at Mahiwal; when he was confronied to the contents of FIR, he admitted that it is not mentioned in the FIR that accused Saeed resisted and pushed deceased Mahiwal; PW Muhammad Mithal did not state about the resistance and pushing the deceased Mahiwal by accused Saeed; and whereas PW Ali Murad has stated that accused Asghar Laghari resisted with his uncle Mahiwal and inflicted straight fire at his uncle Mahiwal, who received fire shot injury on the chest below left nipple; PW Muhammad Mithal and Ali Murad have stated that on 25.03.2013 at about 04:00 pm they left for Shahpur Jahania to purchase household articles, but when they were confronted to their respective statements under Section 161, Cr.P.C, they admitted that the fact of their leaving at 04:00 pm from their village for Shahpur Jahania is not mentioned in theix statements; PW Muhammad Mithal has stated that he purchased sugar and tea from Shahpur Jahania, and Mahiwal also purchased sugar and tea there from; and when he was questioned about the shop and name of shopkeeper, he has stated that he does not remember the name of shopkeeper and the shop; PWs Muhammad Mithal and Ali Murad have stated that their statements were recorded by the police on the next day; PW Ali Murad has stated that after the incident he had no meeting with the police officials, although he claims himself to be one of the eye-witnesses and per prosecution he was present at the place of vardat after the incident where police came and inspected the place of incident and dead body etc; PW Muhammad Mithal has stated that his statement was recorded by head constable Munshi of police station; police official obtained his thumb impression on some documents; but record reveals that no document, containing thumb impressions of PW Muhammad Mithal was produced by the prosecution in evidence; per PW Ali Murad no person from our village came at the place of incident; however, he voluntarily said that Ghulam Mustafa (mashir) came there, but he does not state about the co-mashir Qaim's coming there; per him accused persons committed robbery of the articles from deceased Mahiwal and when he was confronted to his statement under Section 161, Cr.P.C, he admitted that he did not narrate such facts to the police officials in his statement; the complainant has stated that it was dark night and without source of torch one cannot see even at the distance of one feet in that dark night of the incident, but they had one torch, which was in his hand and on the light of torch he identified the accused and, while proceeding towards P.S. he handover the torch to PW Ali Murad; whereas per PW Muhammad Mithal when the complainant went to the police station, the torch remained with him (the complainant); according to him, it is not in his knowledge that the police had seized the torch as the case property or not; the complainant has stated that he had not produced the torch before the Investigating Officer, and whereas according to PW Ali Murad the complainant had produced the torch before the Investigating Officer and, per him the police completed legal formalities in the light of the torch, but on the contrary the I.O. has stated that he had not seen any torch at the place of incident; and, he made the mashirnamas on the headlights of police Mobile; per complainant the deceased was fired at from the distance of one feet while PW Muhammad Mithal has stated that they saw the accused from a distance of 5/6 feet and whereas PW Ali Murad has stated that they saw the accused at the distance of two feet, but both of them did not disclose the distance from which the deceased was fired at, however, according to PW Dr. Bashir Ahmed, who conducted port-mortem of the deceased, the deceased was fired at from a distance of less than four feet. The complainant and PWs have stated that the dead body of deceased was shifted to hospital by the police in police Mobile; the ,complainant claimed to have come at Taluka hospital along with police in the same police mobile in which the dead body of deceased Mahiwal was shifted and they shifted the dead body from the place of incident directly to hospital; and, per PW mashir Ghulam Mustafa, in his presence the complainant removed the dead body from the place of incident towards the hospital, while PW I.O. ASI Ghulam Abbas Almani has stated that he dispatched the dead body to hospital in private vehicle; he himself hired the private Datsun, HC Haji Khan went to hospital with the dead body in the said vehicle; and, per him the complainant remained with him at the place of incident; the complainant has stated that he went to police station Laghari by running and seeking help of one motorcyclist; the motorcyclist extended lift to him and then he reached police station Laghari, when he was confronted to the contents of the FIR he admitted that the fact of getting lift from motorcyclist is not mentioned in the FIR; the complainant has stated thdt they all purchased the articles combined, which were kept by them in two separate bundles of clothes; one was carrying by Mahiwal and another was with Mithal; those bundles were seen by the police officials at the time of inspection of place of incident; the fact of presence of such bundles were not noted in the memos prepared at the place of incident; while PW I.O. ASI has stated that the complainant did not show him things which he had purchased from Shahpur Jahania; the complainant has stated that the accused are their co-villagers, therefore, they know them, but when he was questioned he has stated that he does not know the name of village of accused Ali Asghar; and per him he does' not know the relatives of accused Ali Asghar; likewise PW Muhammad Mithal has stated that it is not in his knowledge about the residence of accused persons; and he does not know the relatives of accused Ali Asghar; and whereas the FIR reveals that the names, parentage and residence of all the accused are specifically mentioned therein; complainant Muhammad Umar, and PWs Muhammad Mithal and Ali Murad have stated that the complainant leaving PWs Muhammad Mithal and Ali Murad over the dead body of deceased Mahiwal had alone gone to the police station to lodge FIR, but PW ASI Ghulam Abbas, who is author of the FIR and is also Investigating Officer, has stated that the complainant and witnesses came at the police station; and whereas PW Muhammad Mithal has stated after departure of Umar he and Ghulam Mustafa reached at the place of vardat and he went on to state that it is not in his remembrance that as to what kind of proceedings were made by the police at the place of incident; he does not remember whether the police took the blood stained earth from the place of incident; it is not in his knowledge that the police did anything in his presence; per Investigating Officer ASI Ghulam Abbas has stated that when they reached at the place of incident, 4/5 persons were standing with the dead body, who were already present at the vardhat before their arrival; he had not called any villager from village Haro Bhatti; the complainant himself arranged the mashirs; and the hands and legs of the dead body of deceased were tied with some sort of patties (strips of clothes); and whereas per PWs Muhammad Mithal and Ali Murad they had not touched the dead body till the arrival of the police.
PW I.O. ASI Ghulam Abbas has stated on 28.03.2013 he sent the property to expert for opinion and on the same day he sent the weapons to ballistic expert for examination and report while forensic expert reports produced by the said PW.1 at Ex.17-B, revealed that the empty of .30 bore pistol marked "C" allegedly secured from the place of incident on 25.03.2013 and three pistols with live bullets marked as A, B and D allegedly recovered from the accused on 27.03.2013, were received in the office of ballistic expert on 03.04.2013 i.e. after eight days of recovery of the alleged empty from the place of incident and after six days of alleged recovery of weapons from the accused and nothing has been brought on record by the prosecution to show that where that property remained for that intervening period nor any explanation about that has been furnished by the prosecution, however, I.O. ASI Ghulam Abbas has admitted that he has not produced his departure and arrival entries before the Court; he had not sent the empty round to the ballistic expert till the arrest of the accused; in the memo of dead body he mentioned only one injury sustained by deceased; and he did not seize the wearing clothes of the deceased; the case property was not produced when the evidence of mashir Ghulam Mustafa and I.O. ASI Ghulam Abbas were recorded as is evident from their evidence, wherein in cross-examination they have admitted that the case property is not present in the Court; the complainant has ' admitted that the motorcycle which was used by the accused in the commission of the offence is not present in the Court; the things they purchased not seized by the I.O. as case property; they (the police) took the blood in polythene bag, but it is a fact that the same is not present in the Court; at about 10:00 pm police dispatched the dead body towards hospital for postmortem; they (the complainant and police) reached at the hospital after about one hour; and, they reached at the hospital at 11:00 p.m., but postmortem report Ex.15/C reveals that the dead body was arrived there at 10:30 p.m., the postmortem was started at 11:00 pm and it was completed at 11:50 p.m.
15. A perusal of the record further shows that Investigating Officer has committed serious and grave mistakes either by not collecting evidence or by not presenting some very relevant piece of evidence before the trial Court. Hence, this negligence of police, especially Investigating Officer in this way casts a fatal blow to the prosecution case, inter alia, from the following aspects:- i) The blood stained clothes of the deceased were never taken into possession by the police; hence, were never produced in the Trial Court. ii) The torch allegedly in the light of which the complainant and other witnesses saw and recognized all the three accused persons was never taken into custody; hence, was not produced in the court. iii) Allegedly, the motorbike upon which all the accused persons were riding when they allegedly attempted to commit robbery and killed the deceased Mahiwal. This motorbike was also not produced in the learned trial Court, when the complainant was examined. iv) The failure of the police to take possession of the relevant pieces of evidence in custody or not producing them in the court of law after taking their possession, either reflects the incompetency and or the negligency on the part of Investigating Officer, causing fatal blow to the case of prosecution, vitiating the trial in view of well settled law that if the material incriminating articles are either not taken into custody by the Investigation Officer or not produced in the court of law during the trial vitiates the whole trial. Reliance is placed on "Ghulam Shabir v. The State" (1976 PCr.LJ 1063), "Raja alias Dad Muhammad alias Dado v. The State" (2013 MLD 1225), "Shafqat Mehmood and others v. The State" (2011 SCMR 537); "Waqar. Ahmad v. The State" (2012 PCr.LJ 170); "Sabir Ali alias Fauji v. The State" (2011 SCMR 563) and "Muhammad Hussain's case" (1993 SCMR 1614). v) It is strange enough that the incident was shown to have taken place at 2100 hours and after the incident the complainant covering a distance of three kilometers reached at police station and lodged his FIR at 2115 hours; and then forming the police party, the Investigating Officer accompanying his police staff set out from the police station and after covering such distance of three kilometers reached at the place of incident where the mashirnama of place of incident and the danistnama of dead body of the deceased were shown to have been prepared at 2130 hours i.e. within 15 minutes of lodging of the FIR, followed by preparation of lash chakas form at 2135 hours i.e. within 05 minutes that is incomprehensible. Similarly, the reaching of co-villagers, Qaim and Ghulam Mustafa from a village Muhammad Paryal Bhatti, which is relatively at a more distance to the place of crime upon hearing of the hue and cry and non-coming of any person from village Haro Bhatti and village Arbelo Bughio, which are relatively nearer to the place of incident, is also incompre-hensible, creating doubt in the story of the prosecution. vi) The non-taking into possession any item from the complainant or from the PWs, who accompanied him when that crime was being committed and when they all were coming back to their home from Shahpur Jahania after purchasing items from a general store, made the case of prosecution further weak because the prosecution has no other corroborative piece of evidence to prove as to what the complainant and his colleagues were doing at that place where crime was allegedly committed in that dark night on a katcha path of a village. vii) The torch allegedly in the light of which the complainant saw and recognized all the three accused persons was never taken into custody; hence, never produced in the trial court leaving a room to create a serious doubt on the case of prosecution that around 9:00 p.m. in the dark night upon a katcha path way of village admittedly there was no other source of light how the complainant and other witnesses recognized all three accused persons. viii) Admittedly, the statements under Section 161, Cr.P.C. of the alleged eye-witnesses namely PWs Muhammad Mithal and Ali Murad were recorded by the police on the next day of the incident, although prosecution claims presence of the aforesaid alleged eye-witnesses at the place of vardhat when police came and inspected the place of vardhat and dead body and completed all the legal formalities; and no explanation for such an inordinate delay in recording statements of the alleged eye-witnesses PW Muhammad Mithal and Ali Murad has been offered by the prosecution that being fatal to the prosecution, the testimony of such witnesses cannot be safely relied upon in view of the well settled law. Reliance in this context is placed on the case of Muhammad Asif v. The State [2017 SCMR 486], wherein the Hon'ble Supreme Court of Pakistan has held that: "There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statements of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon."
16. In view of what has been stated above, we are of the considered view that the prosecution has failed to establish the presence of the alleged eye-witnesses at the time of the incident and further the aforementioned material and glaring contradictions; admissions adverse to the prosecution case; and dishonest and deliberate improvements to strengthen the prosecution case during the trial in the statements by the PWs, rendered their credibility doubtful and their evidence unreliable, hence no explicit reliance can be placed thereon; and, the entire case of the prosecution is shrouded in mystery. And, thus, the prosecution has miserably failed to prove its case against the appellant beyond a reasonable doubt; it needs no reiteration that a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession, but as matter of right.
Reliance in this context is placed on the cases of Akhtar Ali and others v. The State (2008 SCMR 6), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Ryas v. The State (1997 SCMR 25).
17. This case was earlier decided by the trial Court, i.e., the learned Additional Sessions Judge, Moro vide judgment dated 07.10.2019, which was challenged before this Court vide Jail Criminal Appeal No.17-I of 2019 titled as "Ali Asghar and others v. The State". This Court vide judgment dated 07.11.2019, remanded the case to the learned trial Court with directions to conduct de novo trial. In compliance of direction of this Court, a de novo trial was conducted by the trial Court, starting from framing of charge against the accused persons and after recording evidence; has passed the impugned judgment dated 02.05.2020 by framing the points of determination as follows: Point No.01.
Whether on 25.03.2013 at about 2100 hours, deceased Mahiwal died due to his unnatural death by sustaining firearm injuries, as alleged by the prosecution?
Point No.02.
Whether on 25.03.2013 at about 2100 hours at village Haro Bhatti leading from Shahpur Jahania to village Bungal Burdi, Deh Mari during harrabah one Mahiwal succumbed to his injuries, now question arises who is vicarious liable for committing murder of Mahiwal amongst the present accused?
Point No.03.
What offence if any has been committed by the present accused persons?
The point of determination should be formulated for writing a judgment in a clear, unambiguous language and manner. The Court is supposed to draft the points for determination while passing judgment in clear and direct language. The use of any word or phrase which may create ambiguity while deciding any point of determination can cause a serious dent to the case of prosecution. The phrase referring to who is "vicarious liable for committing murder" is itself a fundamental flaw in the impugned judgment. The use of phrase "vicarious liable for committing murder of Mahiwal" the deceased among the present accused persons in this case is serious error committed by the trial Court. According to Eighth Edition of Black's Law Dictionary the word "vicarious" means as follows: "vicarious, adj. Performed or suffered by one person as substitute for another; indirect; surrogate."
While according to Eleventh Edition, Revised of a Concise Oxford English Dictionary the word "vicarious" means as follows: "vicarious, adj. 1 experienced in the imagination through the feelings or actions of another person: vicarious pleasure. 2 acting or done for another."
Apparently the trial Court while formulating the point of determination on vicarious liability failed to comprehend that this was not the case of prosecution at all and by formulating such point of determination, unnecessarily it deviated to the wrong direction. Since this case had already been remanded earlier to the trial Court for de novo trial vide judgment dated Q7.11.2019, and there are so many cogent reasons that create serious doubt in the case of prosecution, which are dis-cussed hereinabove, therefore, we are of the view that remanding the case again to the learned trial Court for re-writing of the judgment would hardly serve any purpose. Accordingly we accept the instant appeal, and set aside the impugned judgment dated 02.05.2020 of the learned trial Court, whereby the appellant was convicted and sentenced. The present appellant is acquitted from the charge and he is directed to be released forthwith if his custody is not required in any other case.
CRIMINAL APPEAL NO. 06-K OF 2020 This Criminal Acquittal Appeal No.06-K of 2020 is directed against the judgment dated 02.05.2020 passed by learned Additional Sessions Judge, Moro in Sessions Case No. 188/2013, FIR No.07/2013, registered at PS Leghari, whereby the respondents have been acquitted.
2. The appellant / complainant is partially aggrieved of the judgment dated 02.05.2020 thereby the respondents Saeed and Ahsan Ali were extended benefit of doubt and acquitted of the charge.
Learned counsel for the appellant contended that the prosecution witnesses have categorically stated that both the appellants duly armed were present at the scene of occurrence with intention to commit robbery. During the course of committing robbery Mahiwal was done to death by one of the assailants. It was contended that the trial Court has accepted the prosecution story/ case to the extent of the presence of both the accused at venue at the time of commission of offence, however, were acquitted of the charge merely on the ground that they have not made any fire upon the deceased or other witnesses. The learned counsel contended with vehemence that once the presence of an accused .at the venue for the commission of the offence of robbery or dacoity is established and believed by the trial court, thereafter the question of any overt act by any of the accused loses any significance. According to learned counsel, the judgment to the extent of acquittal of the accused is not sustainable under law. To supplement his submissions, he placed his reliance on a couple of judgments, (2019 SCMR 1285) "Muhammad Faisal Abbas v. The State", (2011 SCMR 713) "Ansar Mehmood v. Abdul Khaliq and another", (2020 ML D 567) [Sindh] "Abbas Ali and another v. The State" (2014 PCr.LJ 885) [Sindh] "Nawab All v. The State (2015 PCr.LJ 391); "Muhammad Rasool and others v. The State".
3. The learned Additional Prosecutor General Sindh supported the judgment by contending that since respondents have not played any active role, therefore, they were rightly acquitted.
Respondents, did not engage counsel and have submitted written arguments which were taken on record and had prayed for dismissal of appeal.
4. We have heard the parties and find sufficient force in the submission of the learned counsel for the appellant that once the presence of an accused at the venue is established by the prosecution, then actual part of an accused for the commission of offence of robbery loses its significance, although may be relevant for the purpose of quantum of sentence. We agree to such an extent, the judgment passed by the trial court on such a ground, is not sustainable. However, since the prosecution has not been able to prove its case, as discussed hereinabove in preceding paras, therefore, notwithstanding the legal defect pointed out by the learned counsel for the appellant, in our opinion, no case is made out for interference warranting setting aside of acquittal. We have gone through the citations referred by the learned counsel for the appellant, no cavil with the principle laid down therein, however, facts being different the same do not render any help to the appellant.
5. Since we have accepted the appeal against conviction filed by the appellant Ali Asghar, therefore the acquittal appeal is dismissed.